Kinsella et al v. Rapid Drug Detox Marketing, LLC et al

Filing 6

MEMORANDUM and ORDER that the motion to transfer the case to the Eastern District of Michigan (ECF No. 21 ) is granted; that the remaining motions to dismiss (ECF Nos. 30 , 31 , 40 and 66 ) are denied as moot without prejudice. Signed by Judge Peter G. Sheridan on 11/20/2012. (mmh) [Transferred from njd on 11/27/2012.] Modified on 11/27/2012 (VLun).

CLOSED
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MARY KINSELLA, Administratrix ad
Prosequendum of the Estate of Michael
Kinsella, and individually,

Civil Action No. 12-cv-1176 (PGS)

Plaintiff,
v.

MEMORANDUM AND ORDER

RAPID DRUG DETOX MARKETING,
LLC., et al.
Defendants.

SHERIDAN, U.S.D.J.
This matter comes before the Court on five motions. The first is a motion to transfer the case
to the Eastern District of Michigan brought by Defendants Jeanne Katz, Shirley A. Cohorst and
Rapid Drug Detox Marketing, LLC (“RDD”). The remaining four motions are motions to dismiss
brought by other defendants. For the following reasons, the motion to transfer is granted, and the
other motions are denied without prejudice.
I.
The Complaint alleges the following facts. Decedent, Michael Kinsella, a resident of New
Jersey, was introduced to opioid medication when it was prescribed to treat the pain associated with
an ongoing medical condition. When attempting to cease using opiates, Mr. Kinsella realized he was
physically dependent on the drugs. With the desire to end his opiate addiction, Mr. Kinsella

considered medically supervised drug detoxification, and he contacted RDD, a limited liability
company located in Michigan, for information. RDD responded and asked preliminary questions
concerning his background to determine whether the drug detoxification process would be
appropriate. More specifically, on August 19, 2010, RDD Centers solicited Mr. Kinsella via email.
These emails included questionnaires soliciting his medical and drug use history as well as
instructions for his preparation for the detoxification process. This email was followed with a phone
call from RDD. RDD literature emphasized the safety of the procedure.
On September 13, 2010, Decedent drove to Michigan to the offices of RDD. Per instructions
from RDD, he checked into the Hampton Inn in Commerce Township, Michigan, which is owned
by Commerce Hospitality Management, Inc. RDD had previously advised Decedent that he was
required to stay at this Hampton Inn both before his procedure and during his post detox recovery.
The following day, Decedent submitted to a blood test and completed medical history forms
under the treatment of Edith Nemeth, M.D., a Michigan licensed physician, at the RDD facility. He
also was examined by staff psychologist Gary J. Gunther, Ph.D., a Michigan licensed psychologist.
Dr. Nemeth also referred Decedent to Alan Chernick, M.D., a Michigan licensed physician for a preprocedure echocardiogram.
On September 15, 2010, Mr. Kinsella underwent a procedure known as “opiate reversal”
under general anesthesia at RDD’s Michigan facility. This procedure purportedly involved the
administration of drugs that replace opiates on the body’s receptors, forcing the opiates into the
bloodstream so they can be excreted by the kidneys and thus eliminated. Severe withdrawal would
begin immediately upon initiation of this process.
After the procedure, Mr. Kinsella was required to remain in the Hampton Inn for his post

surgery recovery. RDD assigned defendant Roselia Campos to serve as a “drug free caretaker” for
Decedent. RDD required all of its patients, including Decedent, to stay at the Hampton Inn with a
caregiver for post operative recovery.
While Mr. Kinsella was at the Hampton Inn, during his post procedure recovery, Decedent
suffered acute distress1 and was later pronounced dead at the Henry Ford Hospital located in West
Bloomfield, Michigan on September 19, 2010.
II.
Generally, a district court may transfer a civil matter to another district if it is appropriate
under the circumstances. The pertinent statute provides: “For the convenience of parties and
witnesses, in the interest of justice, a district court may transfer any civil action to any other district
or division where it might have been brought.” 28 U.S.C. § 1404(a). The purpose of the statute “is
to prevent the waste of ‘time, energy and money’ and ‘to protect litigants, witnesses and the public
against unnecessary inconvenience and expense . . . .’” Ricoh Co., Ltd. v. Honeywell, Inc., 817 F.
Supp. 473, 479 (D.N.J. 1993) (quoting Van Dusen v. Barrack, 376 U.S. 612, 616 (1964). Generally,
the decision to transfer an action is within the discretion of the trial court. See Cadapult Graphic
Sys. v. Tektronix, Inc., 98 F. Supp. 2d 560, 564 (D.N.J. 2000). In exercising such discretion, the
court is free to consider “all relevant factors,” including private and public interest factors that
closely mirror those in a forum non-conveniens analysis. See Jumara v. State Farm Ins. Co., 55 F.3d
873, 879 (3d Cir. 1995). The private interests to be considered include plaintiff’s forum preference
as manifested in the original choice, the defendant’s preference, whether the claim arose elsewhere,
the convenience of the parties as indicated by their relative physical and financial condition, the
1

Defendants claim Mr. Kinsella may have committed suicide since a suicide note
was found in his hotel room.

convenience of the witnesses, and the location of books and records.
The public interests to be considered include the enforceability of the judgment, practical
considerations that may make the trial easy, expeditious, or inexpensive, the relative administrative
difficulty such as court congestion, the local interest in deciding local controversies, the public
policies of the fora, and the familiarity of the trial judge with the applicable state law in diversity
cases. These public factors interrelate with the private interests because the public interest considers
where the claim arose, the convenience of parties and witnesses, location of books and records, and
any local interest in deciding localized controversies.
The moving party has the burden of persuasion, which requires not only that the alternative
forum is “adequate but also more convenient than the present forum.” Ricoh, 817 F. Supp. at 480
(citing Lacey v. Cessna Aircraft Co., 862 F.2d 38 (3d Cir. 1988)).
It is appropriate to transfer the case to the Eastern District of Michigan for the following
reasons:
1.

The case could have been brought in Michigan initially as the statute requires (28

U.S.C. § 1404(a));
2.

The Complaint centers around an allegedly invasive medical procedure performed

in Michigan;
3.

The licensed medical professionals who performed the detoxification procedure

worked, resided, and were licensed in Michigan;2

2

The record is unclear as to whether Defendant Rosalia Campos resides in
Michigan; it is clear however that she is Michigan-licensed and worked in Michigan when the
events at issue in this litigation transpired. The individual Defendants Shirley A. Cohorst, Edith
Nemeth, Fary Gunther, Jesse Perez, and Jeanne Katz all reside in the Eastern District of

4.

All of the books and medical records associated with the procedure are maintained

in the ordinary course in Michigan;
5.

Post operative recovery occurred in Michigan;

6.

Decedent’s final hospitalization occurred in Michigan; and

7.

If an autopsy occurred, the records of same are located in Michigan.

The private interests at stake in this litigation weigh in favor of venue in the Eastern District
of Michigan. While the Court is mindful that Plaintiffs, New Jersey residents, would prefer to
litigate in this District, “[transfer] should not be automatically barred when a plaintiff has filed suit
in his home forum.” See Axxa Commerce, LLP v. Digital Realty Trust, 2009 U.S. Dist. LEXIS
94103 (D.N.J. 2009). “[I]f the balance of conveniences suggests that trial in the chose forum would
be unnecessarily burdensome for the defendant or the court, [transfer] is proper.” See Id.
Convenience of witnesses has been called the most powerful factor governing the decision to transfer
a case. See In re Eastern Dist. Repetitive Stress Injury Litig., 850 F. Supp. 188, 194 (E.D.N.Y.
1994).
The public interests also weigh in favor of transfer. Because nearly all of the Defendants and
potential witnesses reside in Michigan, conducting the trial will be easier, more convenient and less
expensive in Michigan. In addition, Michigan has a local interest in processing litigation against its
doctors who are licensed in Michigan. Clearly, the interests of Michigan outweigh any interest New
Jersey has. Axxa Commerce, LLP v. Digital Realty Trust, L.P., 2009 U.S. Dist. LEXIS 94103, at
*12-13 (D.N.J. Oct. 8, 2009). In addition, the motion by Defendants Gary Gunther and Edith
Nemeth to dismiss for lack of jurisdiction may be moot if the case is transferred to Michigan.

Michigan.

Based on the foregoing, the public and private interests at stake in this case are best served
by the transfer of this action to the Eastern District of Michigan. Defendants’ motion to transfer
venue is granted. The merits of the remaining four motions may be substantially changed due to the
transfer to Michigan; as such they are denied as moot.
ORDER
This matter having been brought before the Court on motions by defendants;
IT IS on this 20th day of November, 2012
ORDERED that the motion to transfer the case to the Eastern District of Michigan (ECF No.
21) is granted; and it is further;
ORDERED that the remaining motions to dismiss (ECF Nos. 30, 31, 40 and 66) are denied
as moot without prejudice.

s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.